The prosecutors vs. the people of New Jersey

Contrary to the old saying, it’s not lonely at the top. In fact, it’s kind of cozy — if you’re a former member of the U.S. Attorney’s staff.

Jerry McCrea/The Star-LedgerGov.-elect Chris Christie announced his nomination of Essex County Prosecutor Paula Dow to be his attorney general at a Trenton news conference Dec. 15.

After Gov.-elect Chris Christie nominated Essex County Prosecutor Paula Dow to be the next attorney general of New Jersey, I noticed a somewhat disturbing pattern. If Dow is confirmed, the four most powerful offices in New Jersey will be occupied by alumni of the U.S. Attorney’s Office.

Lt. Gov.-elect Kim Guadagno also worked under Christie. So did Stuart Rabner, who is chief justice of the state Supreme Court.

Four people who built their reputations as crusading prosecutors running the state. What’s disturbing about that?

Plenty, says Harvey Silverglate. Silverglate is an attorney and author from Boston who is something of a stickler for the Constitution. His work in that regard has won him the approval of legal scholars on both the left and the right. Liberals like Silverglate because of his work expanding civil liberties. But he’s also popular with conservatives because he co-founded the Foundation for Individual Rights in Education, which fights speech codes and other forms of political correctness on campus.

Silverglate’s latest target is the growing power of the U.S. attorneys, who are the regional representatives of the federal attorney general. The title of his latest book is “Three Felonies a Day.” That’s the number of potential federal crimes the average citizen commits between waking up and going back to sleep each day, he says.

“There’s this increasingly vague federal criminal law that can be used to get any person for anything,” Silverglate told me when I got him on the phone.

In his book he cites an anecdote about a game federal prosecutors would play while sitting around after hours. One would name a public figure, such as Mother Teresa or John Lennon, and the other would have to come up with a federal offense for which the person could be indicted.

They never failed, perhaps because they can fall back on such old reliables as the “honest services” clause of the federal mail fraud statute, which outlaws “any scheme of artifice to deprive another of the intangible right of honest services.” The constitutionality of that clause is now before the U.S. Supreme Court and Justice Antonin Scalia, perhaps the most conservative member of the court, is leading the charge to have the statute declared unconstitutional.

One problem with all of this power, says Silverglate, is that a U.S. attorney can employ it to launch a political career. When Christie did so he was merely following the tradition of former U.S. attorneys ranging from William Weld in Massachusetts to Rudy Giuliani in New York.

“What has disturbed me is the fact that being in the Department of Justice is such a jumping-off point for career advancements both in politics and the law,” he said.

Silverglate pointed out a potential conflict I hadn’t thought of. What career will Christie pursue after he leaves office? If he intends to return to the practice of law, he certainly won’t want to antagonize his old buddy the chief justice. The same goes for Guadagno and Dow.

But unless the executive branch is willing to take on the court, this state might as well declare bankruptcy. And if that bankruptcy occurs, it will have its roots in the work of a couple of ex-prosecutors who also made the jump to elective office, Richard Hughes and Brendan Byrne.

Hughes had worked his way up from the U.S. Attorney’s office to the governorship before being named chief justice of the state Supreme Court, (as noted in the excellent biography "The LIfe and Times of Richard J. Hughes" by Seton Hall law professor John Wefing.) In 1976, he ordered his fellow Democrat — governor and former Essex County prosecutor Brendan Byrne — to come up with a way to fund a vast increase in school spending. Byrne complied. And ever since, state spending has grown at a rate well in excess of the rate of inflation.

The problem with prosecutors, if I may presume to deduce it, is that they rise to prominence because of their skill at employing and expanding the powers of government. They are therefore uniquely unsuited to the task of reducing government.

Unfortunately, that’s the task that confronts our next governor if he wants to rescue us from ruin. And with his legal background, Christie certainly has the ability to reverse the situation created by all of those past governors who cozied up to the courts to do a tag team on the taxpayer.

But will Christie tell Rabner that the state can no longer afford to send $66 million annually to a school district like Asbury Park — $29,895 in state aid for each of its 2,200 students? Will Christie keep his pledge to “gut COAH” when eliminating the Council on Affordable Housing would mean direct conflict with the judges whose orders led to its creation?

If he did so, it really would be lonely at the top. And Christie seems to like company.